Protected Veteran Status safeguards qualifying veterans, also known as protected veterans, from discrimination throughout the entire employment process with companies and potential employers. Essentially, it serves as affirmative action for veterans with protected veteran status.
What’s the Difference Between a Veteran and a Protected Veteran?
If you have completed active military, air, or naval service, you are a veteran. So long as it is not a dishonorable discharge, you become a veteran once you are released or discharged from duty.
Protected veterans must meet certain qualifications or fall under one of four specific conditions (please see below). Hence, all protected veterans fall under the broader category of veterans, but not all veterans are considered protected. This is because the situation might vary and not fit into any qualifying protected veteran categories.
What Laws Govern Protected Veteran Status?
Protected Veteran Status was created by a law called the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). It was created to protect veterans returning from war against employment discrimination. It is a key federal law that prohibits employers from treating veterans unfairly based on their service history.
Another federal law shielding veterans is The Uniformed Services Employment and Reemployment Rights Act (USERRA). It was passed in 1994 and amended in 2005. This law protects those who serve in the guard or reserves, ensuring civilian employment and benefits remain intact upon returning from service. Additionally, it is in place to prevent employment discrimination based on a history of service. Both VEVRAA and USERRA also cover reasonable accommodations for disabilities. Under VEVRAA and USERRA, employers need to provide reasonable accommodations for disabilities so that protected veterans can perform their duties, roles, and responsibilities at their respective job.
What Employers Should Know
VEVRAA applies to all employers and companies that do business with the federal government. This includes contractor and subcontractor positions with the government. Employers who hire veterans or work with veterans in the capacity of contractors and/or subcontractors benefit from knowing about Protected Veteran Status because it prevents them from violating VEVRAA and USERRA. This is important because if employers violate either law, they can be the subject of a discrimination complaint, thereby losing federal government contracts and negatively impacting the company.
On the other hand, these employers must also promote upward mobility for protected veterans and can benefit from their leadership within the organization. Veterans learn many transferable skills during their time in service that can be of great value to employers. Many veterans have reported time in service is helpful to civilian jobs. For example, they have been trained to have high standards for themselves, to be effective in high-pressure situations, to work efficiently with a diverse group of effort towards a common goal, and to follow established procedures. They can also bring specific training and skills to a company, such as technical experience with computers or managing others.
What are the Requirements for Protected Veteran Status?
One of the major requirements to be considered a protected veteran is not being dishonorably discharged from service. There are four main categories of protected veterans, each with specific qualifications.
They are as follows:
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1. Active-Duty Wartime/Campaign Badge Veteran
Certain wars are comprised of campaigns and expeditions by the United States Department of Defense. These wars result in the authorization of Campaign badges. If you have obtained a Campaign Badge or were on active duty during wartime, this would be a qualifying condition for Protected Veteran Status.
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2. Recently Separated Veterans
Recently separated veterans are those who have been discharged or released from active duty in the previous three years. The date of discharge starts the three-year period.
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3. Armed Forces Service Medal Veteran
You will qualify for Protected Veteran Status if you have received an Armed Forces Service Medal during active duty under Executive Order 12985.
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4. Disabled Veterans
If you have a qualifying service-related disability causing you to be discharged or released from active duty, you fall under the category of Protected Veteran Status. Further, if you are entitled to compensation due to a qualifying disability under the Secretary of Veterans Affairs laws, you would also have Protected Veteran Status.
While these are the four categories for Protected Veteran Status, there are also seven major categories for rating Protected Veterans. Even if you qualify for Protected Veteran Status, your disability will still need to be rated by the VA, and your Protected Veteran Status will also need to be rated. These ratings will determine the level of assistance you will receive from the VA. Once you receive Protected Veteran Status, you are entitled to all that has been discussed in this article regarding Protected Veteran Status rights under VEVRAA and USERRA.
What are VA Disability Ratings?
You may be eligible for service connection if you experience an injury, illness, or medical condition because of your military service. If you can prove this to the VA, you will go through a disability exam and receive a disability rating. This disability rating determines your monthly disability compensation.
The disability rating is a percentage that ranges from 0 to 100% and is assigned to service-connected disability/disabilities based on the severity of that injury, illness, or medical condition. The VA utilizes the VA Schedule for Rating Disabilities (VASRD) to assign diagnostic codes and disability ratings for the condition(s). It is located in Part 4 of Title 38 in the United States Code of Federal Regulations. The VASRD also provides explanations, details, and outlines how the VA evaluates specific conditions for disability rating purposes.
VA Protected Veteran Status Ratings
The VA disability ratings’ purpose is to compensate you for the average impairment in your earning capacity caused by your service-connected illness, injury, and/or medical conditions. It is a general rule of thumb that the VA rating of your condition is proportionate to its severity. For example, the more severe the condition is, the higher the VA disability rating tends to be.
VA Protected Veteran Status Ratings are as follows:
- You have a 100% VA rating, and your disability has been deemed a total disability. If this is the case, the VA can only lower your rating if medical evidence proves there has been material improvement.
- Your disability is static. A static disability means there has been no material improvement for 5 years or more. It also means that it is considered permanent by its severity, history, and nature.
- Your disability is permanent. This means that the disability or medical condition is of such a nature that the likelihood of improvement is none.
- Your disability has been in place for 10 years or greater. It is important to note that the rating can still be lowered (but not completely eliminated) if the disability has improved and is supported by medical evidence.
- Your disability has been in place continuously for 20 years or more.
- You are over 55 years old (some regulations would counteract this, and that would be under unusual/out-of-the-ordinary circumstances).
- Your disability is rated using the prescribed schedular minimum within its Diagnostic Code (DC). For example, either of these: (a) your disability is rated 10% or less or (2) the combined evaluation will not change even if the VA’s reevaluation results indicated a lowered evaluation for one or more of your disabilities.
What Does it Mean to Have Protected Veteran Status?
If you have Protected Veteran Status, you are entitled to receive reasonable accommodation in the workplace with military-related disabilities or issues. Reasonable accommodations refer to any adjustment or change made to the workplace or typical way of performing the responsibilities and tasks of a job by disabled veterans. Reasonable accommodations also allow you to perform your job’s duties and/or enjoy the privileges and benefits of employment.
Your job and/or its function do not change due to reasonable accommodations. Rather, they are in place to assist you so that you can do your job well, including:
- Accessible work materials or interpretation of sign language
- Adaptive and accessible work areas
- Common meeting area(s) accessibility features
- Special print formats if you have visual impairments
- Work schedule modifications
This is not an all-inclusive list. As a protected veteran, you can coordinate with the appropriate parties at your workplace to receive specific reasonable accommodations to successfully complete your respective job.
Additional Protections for Protected Veterans
Some employers may have stereotypes about veterans making them hesitant to hire you. For example, they may believe you are angry and rigid, making you unfit for civilian life. Some may think that all veterans have PTSD, while others may have concerns that you will be deployed if you are enlisted in the guard or reserves.
These may influence employers against hiring you or cause them to discriminate against you during the hiring process. Protected Veteran Status is in place to shield you from these forms of discrimination. If you fit within the categories described, your military service time cannot be used as a basis for not being hired. VEVRAA and USERRA also protect you from the start of the recruiting process and the first steps of approaching a company for employment all the way to hiring. They continue to protect you while you are working for the employer as well, making it more viable for you to find gainful civilian employment.
Under VEVRAA and USERRA, protected veterans cannot experience the following regarding military service:
- Harassment
- Demotions
- Terminations
- Lower Compensation
- Unfair Treatment
- Denial of Employment
- Barrier to Upward Mobility
- Refusal of Reasonable Accommodations
Protected Veteran Status allows protected veterans to have an equitable experience while seeking gainful civilian employment and be successful in their job once they obtain one.
Can an Employer Layoff a Protected Veteran?
An employer can lay off a protected veteran so long as it is not based on veteran status or military history. This is considered discrimination and grounds for you to file a complaint. Similarly, even though you have Protected Veteran Status, you still need to do your job well, follow your employer’s policies and procedures and meet or exceed expectations. If you do not, then the employer can terminate you because you are not doing your job or violating company policies. So long as performance reviews and workplace termination is not tied to your time in service, employers may take corrective action as needed.
Should You Disclose Your Protected Veteran Status During The Employment Process?
Employers tend to include questions about veteran status on job applications. This information cannot be used as a basis to provide employment or not. It can be used as helpful demographic information for employers. If you voluntarily disclose protected veteran status, the employer uses that information to ensure they comply with the applicable recruiting and hiring requirements. Overall, employers cannot ask questions about disabilities during the hiring and interview process. This applies to all applicants, including protected veterans. If you have specific questions regarding if or when it is plausible to discuss your disability or protected veteran status with your potential employer, you may contact an attorney or review your local, state, and federal guidelines regarding this.
Doing this before an interview is recommended so that you are properly prepared, equipped, and comfortable for the interview.
What Happens if Your Condition Improves?
The VA can reduce the original rating if your service-connected medical condition improves. This may lower your disability payments. The VA must take specific steps for this to occur.
If the VA anticipates your condition has improved or that it will improve over time, a future reexamination will be scheduled. This can result in a reduced rating to ensure you are being compensated at your disability’s current severity level. Monthly compensation becomes lowered with a reduced rating.
VA Reduced Rating Process
The VA can initiate a rating reduction (38 CFR § 3.105(e)) due to reexamination results. The VA can request a reexamination if your disability is likely to improve. If this is the case, it is important to know that reexaminations are scheduled every two to five years. These are referred to as Routine Future Examinations (RFE). The VA can also request a reexamination if they receive new evidence that your condition has changed. The evidence must be relevant and new.
It is important to be mindful of the overall rule — the rule itself has a 5, 10, and 20-year timespan, so, during this time frame, the VA can request a reexamination at any point.
The VA Disability 5-year rule
The VA Disability 5-year rule allows the VA to re-examine VA disability ratings within 5 years of the initial examination. The VA can also re-examine disability ratings within 5 years if your condition is expected to improve over time.
It is important to note that the VA can change your disability rating past the 5-year deadline if the condition has significantly approved.
The VA Disability 10-year rule
The VA Disability 10-year rule states that the VA cannot discontinue a service connection if you have had it and it has been in place for at least 10 years. There is an exception to this rule, though. If there is evidence of fraud at the time of the grant, the VA can discontinue compensation and benefits and take actions holding you accountable for fraud.
The VA can reduce your disability rating if the VA can prove your condition has substantially improved.
The VA Disability 20-year rule
The VA Disability 20-year rule means that if you have had your rating for 20 years or more and it has been in active effect the entire time, the VA cannot reduce it below the lowest rating it has held in the previous 20 years.
The only exception for each of the 5,10, and 20-year rules is if fraud has been involved and the VA can prove it.
How Can the VA Prove Substantial Improvement?
For the VA to prove substantial and/or sustained improvement, it must:
- Evaluate your entire medical history
- Conduct a new Compensation and Pension Exam (C&P Exam)
- The VA needs to show there is or has been an actual change in your medical condition since the last rating decision was made.
- Evaluate/Re-Evaluate the evidence you provided during your initial VA disability claim.
- That all of this compiled data shows your disability reflects sustained improvement in your ability to function under normal circumstances and ordinary conditions and to work and life stressors.
After completing these items, if the VA reduces your rating, they need to submit detailed evidence that your service-related medical diagnosis has experienced substantial or sustained improvement. They can also provide documentation showing that your service-related medical diagnosis will continue improving.
There is a category referred to as Protected VA Disability Ratings. If your disability is rated under this category, the VA cannot reduce, change, alter, or terminate compensation or ratings.
Refuting a Disability Rating Reduction
You can file an appeal if you believe you have had your disability reduced by the VA unfairly. You can win an appeal by providing the VA with certain evidence, such as:
- Medical history
- Expert medical opinion
- Witness statements (that show medical, cognitive, or physical function preventing you from being able to perform your job duties, supporting yourself, and/or that you have experienced no improvement in your condition)
If you believe your condition has worsened, the same types of evidence can be submitted to the VA for a disability rating review.
Is it Possible to Maintain Your Disability Rating if You Obtain Gainful Employment?
If it is possible for you to work, then the VA encourages it. As stated, you have gained valuable skills during your military term of service. The skills you have learned and used while in active military service are often transferable to civilian positions in the workforce, but not always.
Income factors and working will only impact disability compensation if you receive VA Unemployability or Total Disability Individual Unemployability (TDIU). If this is the case, income limits will apply. Further, if your condition improves or is such that it may improve, and the VA reduces your rating as a result of a reevaluation, it could impact your compensation. However, this is not necessarily always tied to your employment.
If you are employed and working in a position with reasonable accommodations due to Protected Veteran Status, and your primary work responsibilities are consistent with your disability, your rating would not be impacted. However, if you have a high disability rating and you are able to perform work duties that indicate you are able to function above and beyond your disability rating and the severity of your condition, the VA would have new evidence, and this would substantiate a request for reevaluation.
This is mostly relevant for psychiatric disability ratings, especially the 100 percent VA rating criteria. The highest VA rating of 100 percent for a mental disability requires total occupational impairment. Thus, if a person was able to be gainfully employed, it would indicate that he does not have total occupational impairment. Similarly, employment that produces income above the poverty threshold would also impair one’s ability to continue to receive TDIU. With improvement in a condition, you could go through the reevaluation process to maintain your current rating or adjust it as needed to reflect your most current circumstance.
Would This Impact Your VA Pension?
VA pension benefits are based on income level and net worth limits. On the other hand, VA disability compensation benefits are based on the severity of symptoms and level of disability—regardless of assets or income. So, the VA does not utilize income and net worth as factors to determine VA disability compensation benefits as eligibility criteria for veterans. If you have a great, well-paying position, you can still have a 100% Permanent and Total Disability Status—so long as it is not based on the 100% category for mental disabilities, which requires total occupational impairment.
If you are a veteran who believes you qualify for Protected Veteran Status and have questions about navigating the VA disability rating system while working or looking for gainful employment, contact a veteran’s benefits attorney.
Written By: Eric Gang
